CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 19 novembre 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sB00DFE03 { width:22.87pt; display:inline-block } .sA0993303 { width:139.09pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     THIRD SECTION DECISION Application no. 6405/18 Dimitris KONSTANTELLOS and GRAFODIANOMIKI DIMITRIOS KONSTANTELLOS MONOPROSOPI EPE against Greece   The European Court of Human Rights (Third Section), sitting on 19   November 2024 as a Committee composed of:   Lətif Hüseynov , President ,   Ioannis Ktistakis,   Darian Pavli , judges , and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   6405/18) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 22 January 2018 by a Greek national, Mr Dimitris Konstantellos who was born in 1957 and lives in Athens, and a Greek limited liability company, Grafodianomiki Dimitrios Konstantellos Monoprosopi Epe, which was established in 1986 in Athens (“the applicants”). The applicants were represented by Mr   V.   Chirdaris, a lawyer practising in Athens; the decision to give notice of the complaints concerning Article 6 §§   1 and   2 to the Greek Government (“the Government”), represented by their Agent, Ms N. Marioli, President of the State Legal Council, and their Agent’s delegate, Ms A. Magrippi, Legal Representative at the State Legal Council, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns the alleged violation of Article 6 § 1 of the Convention on account of the dismissal of the applicants’ appeals as inadmissible because they had not paid the required court fees and the imposed fines. It also concerns the alleged violation of Article 6 § 2 of the Convention on account of the imposition of tax fines despite the first applicant’s acquittal in criminal proceedings. Proceedings relating to the first applicant 2.     In 2007 following tax controls on the first applicant’s business ( ατομική επιχείρηση ), the tax authorities imposed upon him, as the sole trader, fines for book-keeping irregularities relating to the registration of numerous false invoices for fiscal years 2002-2006. In particular, by the tax authority’s decisions nos. 232/2008, 233/2008, 234/2008, 235/2008 and 236/2008, fines of 32,257.37 euros (EUR), EUR 134,440.95, EUR 38,170.45, EUR   88,051.90 and EUR 68,051.30, plus VAT, were respectively imposed on the first applicant pursuant to Articles 5 and 9 of Law no.   2523/1997. 3.     The first applicant lodged five recourses against the decisions imposing the fines and submitted applications requesting the suspension of the enforcement of these decisions maintaining that the payment of the amounts would cause him damage which would be difficult to repair given his financial situation and his other tax debts. All suspension requests were partially granted by the Athens Administrative Court of First Instance and the payment of the fines was partially suspended pending the judgments on the relevant recourses. 4.     By judgments nos. 18437/2013, 18441/2013, 18440/2013, 18436/2013 and 18434/2013 of the Athens Administrative Court of First Instance, all recourses were respectively dismissed as the court confirmed that the invoices had been false, that the applicant had not contested that he received them and had not proved that he was in good faith as regards the issuer of the invoices. 5 .     The first applicant appealed against the judgments. He maintained that his appeals were admissible despite not having paid the court fee equal to 2% of the amount of the dispute, which was applicable in tax proceedings with pecuniary value (Article 277 § 3 of the Code of Administrative Procedure). The applicant argued that the case-law which concerned the court fee applicable in civil trials should be applied by analogy in his case. According to that case-law, failure to pay the relevant court fee should not render an appeal inadmissible because the provision in question was in breach of Article 6 § 1 of the Convention and Article 20 § 1 of the Constitution (right to judicial protection); it impaired the essence of the right of access to a court and was a revenue-collecting measure which did not aim at the proper functioning of courts or the effective administration of justice. 6.     Furthermore, the first applicant by his appeals relied on a violation of Article   6 § 2 of the Convention. He requested that the fines be annulled as he claimed that judgments nos. 15625/2014 and 72423/2014 of the Athens Criminal Court of First Instance had acquitted him on the merits for the criminal offence of receiving false invoices, as regards the same transactions. 7 .     The first applicant argued by his additional observations submitted after the hearings of the appeals, that the appeals shall be considered admissible, despite the fact that he had not paid the applicable court fees (see paragraph   5 above), and also 50% of the fine imposed by each judgment issued at first instance as required by Article 93 § 3 of the Code of Administrative Procedure. He added that this requirement impaired the essence of the right of access to a court. 8.     All appeals were respectively declared inadmissible by judgments nos.   2031/2017, 2033/2017, 2032/2017, 2030/2017 and 2029/2017 of the Athens Administrative Court of Appeal. It found that the first applicant had failed to comply with the requirements to pay the court fees and the required fines which were not contrary to Article 6 § 1 of the Convention and there had been no suspension granted of the enforcement of the first-instance judgments. Proceedings relating to the second applicant 9.     In 2007, following a tax control on the applicant company, of which the legal representative was the first applicant, fines for the receipt and registration of numerous false invoices were imposed on it for fiscal years 2002 and 2003. In particular, by the tax authority’s decisions nos.   172/2008 and 173/2008, two fines of EUR 15,508.50 and EUR   21,046.55, plus VAT, were respectively imposed on the applicant company pursuant to Articles   5 and 9 of Law no. 2523/1997. 10.     The second applicant lodged two recourses against the decisions imposing the fines which were dismissed by judgments nos. 18439/2013 and 18438/2013 of the Athens Administrative Court of First Instance, as the court confirmed that the invoices had been false and the applicant company had not acted in good faith. The applicant company appealed against the judgments maintaining that the appeals should be deemed admissible despite the company not having paid the court fee equal to 2% of the amount of the dispute which was applicable in tax disputes with pecuniary value (see paragraph 5 above) as the requirement was in breach of Article 6 § 1 of the Convention and Article 20 § 1 of the Constitution, and it impaired the essence of the right of access to a court. It also relied on a violation of Article 6 §   2 of the Convention on account of the acquittal in criminal proceedings of its legal representative (first applicant) for having received false invoices. 11.     Furthermore, the second applicant company argued by its additional observations submitted after the hearings of the appeals, that the appeals should be considered admissible, despite the fact that it had not paid the applicable court fees and also 50% of the fine imposed by each judgment issued at first instance (see paragraph 7 above) as that requirement impaired the essence of the right of access to a court. 12.     The appeals were respectively declared inadmissible by judgments nos.   2035/2017 and 2034/2017 of the Athens Administrative Court of Appeal for failure to comply with the requirements to pay the court fees and the required fines which were not contrary to Article 6 §   1 of the Convention and there had been no suspension granted of the enforcement of the first-instance judgments. THE COURT’S ASSESSMENT 13.     Relying on Article 6 § 1 of the Convention, the applicants complain that they were deprived of access to the Court of Appeal. Their appeals were declared inadmissible because they had not paid the disproportionate amounts of, according to their calculation, EUR 198,811.74 in total for fines and EUR   7,952.47 in total for the court fees. They further complain under Article   6 § 2 of the Convention of a violation of the presumption of innocence on account of the acquittal of the first applicant in criminal proceedings. 14.     The Court considers it unnecessary to determine in the present case whether the criminal limb of Article 6 of the Convention is applicable to the proceedings, since, in any event, the complaints must be declared inadmissible. 15.     The Court further notes that the Government raised the objection that, as regards the applicant company, the application is incompatible ratione personae . It does not however consider it necessary to examine this objection as the application is in any event inadmissible for the reasons stated below. 16 .     The Government also raised a non-exhaustion objection in respect of several aspects. They contended that for the domestic remedies to be exhausted, the applicants should have made their complaints about the alleged violations of the Convention before the domestic courts in compliance with the formal requirements and time-limits laid down in domestic law. They also noted in their observations on the merits that the applicants’ complaints were not examined due to their failure to comply with the formal requirements of the payment of the required court fees and fines. 17.     The Government also raised, among others, that: (i) the applicants had failed to seek suspension of the enforcement of the judgments imposing the fines at first instance, as in case these were granted, the applicants would have been exempted from the obligation to pay the imposed fines and (ii) they had not raised their alleged lack of sufficient financial means before the domestic courts and they had not requested a refund of the court fees as provided for by Article 277 § 10 of the Code of Administrative Procedure. The Government further argued that the first applicant had also not lodged appeals on points of law against judgments nos. 2029/2017, 2030/2017 and 2033/2017 of the Athens Court of Appeal, and that he had never lodged an application for exemption of the payment of the court fees, as provided for by Article 276 of the Code of Administrative Procedure as applicable at the material time. 18.     As regards the applicants’ complaint under Article 6 § 1 in so far as this concerns the requirement to pay 50% of the fines (imposed by the judgments delivered at first instance), the Government further argued that the first applicant had sought suspension which had been partially accepted at the first instance. The applicants were therefore aware of the availability and effectiveness of the said remedy. Had the applicants done the same before the appellate court, they would have been exempted from the payment of the fines until the delivery of the judgments on appeal. As regards the effectiveness of the remedy the Government submitted a case-law example in which a similar application was accepted. 19 .     The applicants did not provide any response to the above submissions of the Government. They merely maintained that “no ordinary remedy would have been effective, because there was standard case-law with regard to the issue of the payment of 50% of the owed amount for lodging an appeal in tax disputes”. They cited judgment no. 1619/2012 of the Plenary of the Supreme Administrative Court, which found that the relevant requirement was not contrary to Article 20 §   1 of the Constitution (right to judicial protection) and Article 6 § 1 of the Convention. 20.     The general principles on exhaustion of domestic remedies have been summarised in Vučković and Others v. Serbia (preliminary objection) ([GC], nos.   17153/11 and 29 others, §§ 69-77, 25 March 2014), and Gherghina v.   Romania ((dec.) [GC], no. 42219/07, §§ 83‑89, 9 July 2015). It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances exempting him or her from this requirement (see Vučković and Others , cited above, § 77, with further references). 21 .     The Court firstly notes that as it was stipulated in Article 93 § 3 of the Code of Administrative Procedure, for an appeal in tax disputes with pecuniary value to have been lodged in an admissible manner (at the material time), an appellant should have paid 50% of the amount owed on account of the judgment delivered at first instance until the first hearing on the appeal. Article 93 § 3 further provided an exception to that rule in case a suspension of the enforcement of the impugned judgment had been granted following an application before the court pursuant Article 209A of the same Code. In accordance with Article 209A, in tax disputes, in which the time-limit or the exercise of a remedy does not have suspensive effect by law against the enforcement of the impugned judgment, the court may decide with summary reasoning to suspend the enforcement of the said judgment, upon an application by the litigant and only provided that the main remedy is considered manifestly well-founded. 22.     The Court considers that the Government have shown to a sufficient extent that the remedy provided for in Article 209A of the Code of Administrative Procedure cannot be disregarded on the grounds that it was unavailable or ineffective. They argued that the application for suspension of enforcement of the impugned judgment was available both in theory and in practice and effective; it had a specific basis in domestic law, it could provide redress in respect of the obligation to pay the required amounts when lodging the appeals, and it was confirmed by practice. 23 .     However, the applicants did not reply to these arguments, and they did not raise any points showing the ineffectiveness of the said remedy. They did not argue that the remedy was for certain reasons inadequate and ineffective in their particular situation or that there existed special circumstances absolving them from the requirement to attempt the remedy proposed by the Government when they lodged their appeals (see Akdivar and Others v.   Turkey , 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV.). The Court thus accepts the Government’s objection and considers that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 24.     As regards the applicants’ complaints under Article 6 § 1 in so far as this concerns the requirement to pay the court fees (2% of the amount of the dispute at first instance in accordance with Article 277 § 3 of the Code of Administrative Procedure) and their complaints under Article 6 § 2, the Court notes that the appellate court declared their appeals inadmissible for failure to comply with two cumulative admissibility conditions when lodging their appeals: not only the payment of the court fees but also the payment of the fines. In view of the Court’s finding above as regards their complaint in respect of the latter (see paragraphs 21-23 above), the Court finds that the applicants had not complied with the formal requirements laid down in domestic law thereby barring the domestic courts from examining their complaints on the merits through their own fault (see Agbovi v.   Germany (dec.), no. 71759/01, 25 September 2006). These complaints must therefore also be rejected under Article 35 §§   1 and 4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 12 December 2024.     Olga Chernishova   Lətif Hüseynov   Deputy Registrar   President